custody factors in Pennsylvania

2025See C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012) (concluding that provisions of the Act apply “if the evidentiary proceeding commences on or after the effective date of the Act[.]”). - 11 - J-S28016-25 In the case sub judice, the trial court addressed and analyzed the custody factors pursuant to Section 5328(a).

2023Prothonotary Date: 03/02/2023 ____________________________________________ 3 To the extent Appellant raises a weight claim in his “conclusion,” we reiterate that “with regard to the credibility and weight of the evidence, we must defer to the presiding trial judge who viewed and assessed the witnesses first- hand.” C.R.F. v. S.E.F., 45 A.3d 441, 443 (Pa. Super. 2012) (citation omitted). 4We further note that we reviewed the trial court’s July 13, 2022 Decision and Order and conclude that the court thoroughly considered the evidence presented at the custody hearing, including Mother’s positive

2025See E.R., 129 A.3d at 527 . - 20 - J-A04020- 25 Taylor, 302 A.3d at 208.

2025See E.R., 129 A.3d at 527 ; M.J.M., 63 A.3d at 339 ; see also King v. King, 889 A.2d 630, 632 (Pa. Super. 2005) (reiterating that “[i]t is not this Court’s function to determine whether the trial court reached the ‘right’ decision; rather, we must consider whether, ‘based on the evidence presented, [giving] due deference to the trial court’s weight and credibility determinations,’ the trial court erred or abused its discretion . . . .” (citation omitted)).

2026If the proposed relocation results in a change in custody, the court must also consider the custody factors in Section 5328(a).6 See A.V. v. S.T., 87 A.3d 818, 822-23 (Pa. Super. 2014).

2025“In expressing the reasons for its decision, there is no required amount of detail for the trial court’s explanation; all that is required is that the enumerated factors are considered and that the custody decision is based on those considerations.” A.V., 87 A.3d at 823 (citation and quotation marks omitted). - 22 - J-A05007-25 Instantly, the trial court addressed each of the custody factors and relocation factors in its thorough memorandum opinion accompanying the custody order, as follows: CUSTODY FACTORS (1) Which party is more likely to encourage and permit contact between the Child and an

2023Section 5328(a) enumerates the custody factors a trial court must consider when assessing a child’s best interests, and the trial court must consider “[a]ll of the factors listed in section 5328(a) . . ..” J.R.M., 33 A.3d at 652 (emphasis in original).

2022In entering an order of custody, the court is required to determine the best interest of the child based on a thorough analysis of the custody factors enumerated in Section 5328(a).7 See J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011). ____________________________________________ 7 The 16 custody factors include: (1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party. (2) The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused

2025As Father stresses, “it was solely in the discretion of the trial court … to weigh the applicable custody factors.” Father’s Brief at 9 (citing M.J.M., 63 A.3d at 336 ).

2025While a parent’s role in caring for a child may be considered in light of the statutory factors, “the primary caretaker doctrine, insofar as it required positive emphasis on the primary caretaker’s status, is no longer viable.” M.J.M., 63 A.3d 331 at 339 . ____________________________________________ 7 Our General Assembly enacted significant amendments to the custody factors “pursuant to Act of April 15, 2024, P.L. 24, No. 8 (known as ‘Kayden’s Law’).” Velasquez v. Miranda, 321 A.3d 876 , 886 n.6 (Pa. 2024); see 2024 Pa. Legis.

2026“If the proposed relocation will result in a change in custody, the court must also consider the custody factors in Section 5328(a).” S.S. v. K.F., 189 A.3d 1093, 1098 (Pa. Super. 2018).

2026“Several of the factors of Section 5337(h) are encompassed, either directly or implicitly, by the custody factors of [S]ection 5328(a).” S.S., 189 A.3d at 1098 (citation, quotation marks, and ____________________________________________ 6 The Section 5328(a) custody factors have been amended since the court’s July order.

2018When a custody arrangement is only in dispute because one parent is choosing to relocate, a dual analysis of the custody factors and the relocation factors is appropriate, “with the best interest standard as the guide.” S.J.S. v. M.J.S., 76 A.3d 541, 550 (Pa. Super. 2013).

2017When both petitions are before the court, a dual analysis of the custody factors and the relocation factors is appropriate, “with the best interest standard as the guide.” S.J.S. v. M.J.S., 76 A.3d 541, 550 (Pa. Super. 2013).

2023This Court has acknowledged, “several of the relevant factors of [S]ection 5337(h) are encompassed, directly or implicitly, by the custody factors listed in [S]ection 5328(a).” Id. at 478 .

2021Again, such -7- J-S11035-21 determinations are the prerogative of the trial court, as fact-finder.5 D.K., 102 A.3d at 478 .6 Next, Father broadly asserts that “[t]he trial court erred in concluding that Mother be granted primary custody of [C]hildren when many of the custody factors did not weigh in favor of one party over another.” Father’s Brief at 36.

2018April 27, 2018) (holding that the shared custody factors -8- J-S12019-18 set forth in Wiseman v. Wall, 718 A.2d 844 , (Pa. Super. 1998), assimilated into the custody factors set forth in 23 Pa.C.S.A. § 5328(a)).

2018See P.J.P. v. M.M. , 2018 PA Super 100 , 185 A.3d 413 , 2018 WL 1979832 (2018) (holding that the shared custody factors set forth in Wiseman v. Wall , 718 A.2d 844 (Pa. Super. 1998), which predated the 2011 amendments to the Custody Law, assimilated into the custody factors set forth in 23 Pa.C.S.A. § 5328(a) ).

2026Corp. ____________________________________________ 12 In its opinion, the trial court, citing M.O., supra, stated that because Mother’s “matters complained of on appeal are related not to the custody schedule but to ancillary matters, the [court] is not required to address the custody factors” of section 5328(a).

2020Physical custody is “[t]he actual physical possession and control over a child.” Id. - 12 - J-S07031-20 when a trial court does not change the underlying custody order, then the factors have not been “implicated directly.” M.O. v. J.T.R., 85 A.3d 1058, 1063 [(Pa. Super. 2014)].

2025On appeal, the father claimed the court’s “references” to the custody factors “were not adequate to show that the court considered those factors when making its decision and, at most, show that the court reflected on those factors later, in preparing its opinion.” Id. at 836 .

2023When making a relocation decision, if the court is also called upon to render a custody decision, the “court must consider all ten relocation factors and all [16] custody factors.” A.M.S. v. M.R.C., 70 A.3d 830, 836 (Pa. Super. 2013).2 Section 5328 sets forth the custody factors to be considered.

2017Id. at 1250.

2015However, recognizing that Rule 1915.5 provides that preliminary objections under that rule shall not delay the custody proceedings, we concluded that, “The custody hearing should proceed as scheduled despite the filing of a preliminary objection based on lack of standing.” Id.

2018Our Supreme Court has explained, “[a]lthough the express wishes of a child are not controlling in custody decisions, such wishes do constitute an -5- J-S78030-17 important factor that must be carefully considered in determining the child's best interest.” McMillen v. McMillen, 602 A.2d 845, 847 (Pa. 1992) (citation omitted).

1995McMillen v. McMillen, 529 Pa. 198, 202 , 602 A.2d 845, 847 (1992).

2017See In re T.S.M., 620 Pa. 602 , 71 A.3d 251 , at 261 n.21 (2013) (“The repeated delays in the courts below are not fully explained and are unacceptable”). .

2017See In re T.S.M., 620 Pa. 602 , 71 A.3d 251 , at 261 n.21 (2013) (“The repeated delays in the courts below are not fully explained and are unacceptable”). .

2019Further, a court should avoid “dissociating the issue of primary custody from the issue of relocation,” and should instead decide the two issues together “under a single umbrella of best interests of the children.” S.J.S. v. M.J.S., 76 A.3d 541, 550 (Pa.Super. 2013) (quoting Collins v. Collins, 897 A.2d 466, 473 (Pa.Super. 2006)).

2015Collins v. Collins. 897 A.2d 466, 471 (Pa. Super. 2006). 11 Circulated 06/03/2015 11:07 AM During the partial custody hearing, Appellant B.H. admitted that she permitted her son, Appellee B.W.H., to visit with the children despite the fact that a court order stated he was not permitted to visit with his children unless he underwent a drug and alcohol evaluation and completed anger management.

2025See C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013) (noting appellant “has not demonstrated that any of her issues were forfeited by virtue of the trial court’s approach in this case [of failing to address the child custody factors before issuing its Rule 1925(a) opinion], we discern no reason to remand this case to the trial court for further proceedings”).

2022Additionally, section 5323(d) requires the trial court to set forth its mandatory assessment of the custody factors “prior to the deadline by which a litigant must file a notice of appeal.” Id. (quoting C.B. v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013)).

2026Accordingly, “the custody court must consider the custody factors under [Section] 5328(a) when deciding these prison cases.” Id.

2026To the extent that Mother asserts the trial court violated her due process rights because it failed to entertain her request for summary judgment, we find Mother’s understanding of the law, as it pertains to custody ____________________________________________ 8 “A question regarding whether a due process violation occurred is a question of law for which [our] standard of review is de novo and the scope of review is plenary.” S.T. v. R.W., 192 A.3d 1155, 1160 (Pa. Super. 2018) (citation omitted). 9 Mother did not challenge the adequacy of the notice of the custody hearing at the start of the c

2018Distinguishing the matter from S.W.D. v. S.A.R., 96 A.3d 396 (Pa.Super. 2014), Mother contends that, as the court altered physical custody, the court was required to and failed to consider the custody factors.

2015Initially, relying upon our discussion in S.W.D., supra, Father asserts that the trial court erred in granting Mother legal custody to choose the school district for her daughter to attend without first considering each of the custody factors enumerated in 23 Pa.C.S. § 5328(a).

2003Paulinski v. Isaac, 483 Pa. 467 , 397 A.2d 760, 763 (1979), for the proposition that "to satisfy the custody requirement for a habeas corpus petition, it was sufficient that a person demonstrate that they [sic] were subject to restraints on their [sic] liberty `not shared by the public generally.'" Chiappini , at 498.

2003Paulinski v. Isaac, 483 Pa. 467 , 397 A.2d 760, 763 (1979), for the proposition that "to satisfy the custody requirement for a habeas corpus petition, it was sufficient that a person demonstrate that they [sic] were subject to restraints on their [sic] liberty `not shared by the public generally.'" Chiappini , at 498.

2026“This Court’s scope of review in custody cases consistently has been defined by our Supreme Court as very broad.” King, 889 A.2d at 632 (citations omitted). “[W]hile we have a broad scope of review, we cannot nullify the fact-finding function of the judge presiding over the custody hearing or their ability to make credibility determinations.” Velasquez v. Miranda, 321 A.3d 876 , 891 (Pa. 2024) (citation omitted); McGee v. McDowell, 333 A.3d 383, 389 (Pa. Super. 2025) (“We defer to the trial judge regarding credibility and the weight of the evidence.”).

2025“This Court’s scope of review in custody cases consistently has been defined by our Supreme Court as very broad.” King, 889 A.2d at 632 (citations omitted). “[W]hile we have a broad scope of review, we cannot nullify the fact-finding function of the judge presiding over the custody hearing or their ability to make credibility determinations.” Velasquez v. Miranda, 321 A.3d 876 , 891 (Pa. 2024) (citation omitted); McGee v. McDowell, ____ A.3d ____, 2025 PA Super 52 , slip. op. at 1 (Pa. Super.

2018See M.E.V. v. F.P.W., 100 A.3d 670, 682 (Pa. Super. 2017) (holding that the trial court failed to provide the requisite contemporaneous review of the § 5328 factors in determining whether to modify a 17-month-old custody order).

2016See id. at 677 (“The simplest way to convey the insufficiency of the trial court’s reliance upon seventeen-month-old findings in lieu of reviewing the statutory factors anew is to examine, factor by factor, those material considerations that undisputedly have changed[.]”).

2026See, e.g., Commonwealth v. Hess, 414 A.2d 1043, 1046-47 (Pa. 1980) (“The restraints on an accused bound over for court and released on bail are sufficient to satisfy the custody requirement of a habeas corpus petition.”); Commonwealth ex rel.

2005In Commonwealth v. Hess, 489 Pa. 580 , 414 A.2d 1043, 1046-47 (1980), our Supreme Court stated that "[t]he restraints on an accused bound over for court and released on bail are sufficient to satisfy the custody requirement of a habeas corpus petition." See also Commonwealth ex rel.

2026See Lombardo v. Lombardo, [] 527 A.2d 525, 529 ([Pa.] 1987).

2025Id. at 7, 12 (capitalization modified) (quoting Lombardo v. Lombardo, 527 A.2d 525, 529 (Pa. 1987) (citation omitted)).

2026However, we examine the version of the statute in place in April 2025, when the court entered its order. - 15 - J-S01001-26 that a court places on any one factor is almost entirely discretionary.” O.G. v. A.B., 234 A.3d 766, 777 (Pa.Super. 2020); see also D.Q. v. K.K., 241 A.3d 1112, 1117 (Pa.Super. 2020) (“The discretion that a trial court employs in custody matters should be accorded the utmost respect, given the special nature of the proceeding and the lasting impact the result will have on the lives of the parties concerned.” (cleaned up)).

2023O.G. v. A.B., 234 A.3d 766, 777 (Pa. Super. 2020) (citation omitted) (explaining that the weight the trial court grants to the various custody factors “almost entirely discretionary.”).

2023Regarding the latter issue, however, any challenge to the custody factors is not appropriate here, where the custody order on appeal was temporary in - 10 - J-S04018-23 nature and not a final, appealable order.3 See (Order, 1/20/23); J.M., supra; G.B., supra. Regarding the first issue complaining that the court denied Mother due process, the court stated: At paragraph 1 of her amended concise statement of errors complained of on appeal, Mother avers that, the court abused its discretion by ruling on evidence that denied her a chance “to give her side of the story” and “prove she was telling th

2023In this vein, there is no dispute that the trial court intended the July 21, 2022 order to “constitute a complete resolution of the custody claims pending between the parties.” G.B. v. M.M.B., 670 A.2d 714, 720 (Pa.Super. 1996). -5- J-A02004-23 On appeal, Father presents the following issues for review, which we re- ordered for ease of disposition. 1) Did the trial court err by weighing the custody factors as though the parties did not . . . already have a custody order in place, rather than considering the factors as a modification of a recently established custody order? 2) Did the trial cou

2022S.T. at 1166-67; see also M.G. v. L.D., 155 A.3d 1083, 1093-94 (Pa. Super. 2017) (citing Etter v. Rose, 684 A.2d 1092, 1093 (Pa. Super. 1996) and D.R.C. v. J.A.Z., 31 A.3d 677, 678 (Pa. 2011)). - 23 - J-A25003-21 Instantly, Father argues the court erred by divesting him of shared legal custody, because the record illustrated that the four Yates-Wiseman factors favored both parties equally.

2018We acknowledge that not every § 5328(a) factor will necessarily apply. *1168 "[W]here, as here, one parent is incarcerated and will remain imprisoned for an extended period, the applicability of several of the enumerated [ § 5328(a) ] statutory factors is questionable." M.G., 155 A.3d at 1093 .

2026Although Graves holds that where children are moving a “significant distance” courts should consider the relocation factors, See Graves, 265 A.3d at 701 , it is unclear from the case law that a move of slightly more than one hour constitutes a significant distance.5 Moreover, although the court did not originally assert it considered the relocation factors when announcing its finding, the court did consider them and is also correct in stating the relocation factors substantially overlap with the custody factors.6 In Mother’s second issue, she asserts the court failed to make Father meet his bu

2022See Order, 6/30/21, at 2-3. 2 As recently explained in Graves v. Graves, 265 A.3d 688 (Pa. Super. 2021): We use the parties’ names in the caption “as they stood upon the record of the trial court at the time the appeal was taken” pursuant (Footnote Continued Next Page) J-S34038-21 avers: (1) the trial court failed to properly consider all the custody factors in the Child Custody Act, 23 Pa.C.S. § 5328, when fashioning its order; (2) the court erred by finding her in contempt for changing Child’s school without Father’s knowledge and purportedly encouraging a third party to post on social media